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S. Kuldip Singh and anr. Vs. the Tehsildar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Direct Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 389 of 1956
Judge
Reported inAIR1958P& H244; [1958]34ITR164(P& H)
ActsPunjab Land Revenue Act, 1887 - Sections 69, 69(1) and 69(4); Income-tax Act, 1922 - Sections 2(9) and 46(2)
AppellantS. Kuldip Singh and anr.
RespondentThe Tehsildar and anr.
Appellant Advocate Bhagirath Das and; K.S. Thapar, Advs.
Respondent Advocate Chetan Dass, Asstt. Adv. General
DispositionPetition allowed
Cases ReferredIn Pharmaceutical Society v. London and Provincial Supply Association
Excerpt:
- haryana urban(control of rent and eviction)act,1973[har.act no.11/1973] -- section 4(2)(b): [m.m. kumar, hemant gupta, ajay & kumar mittal, jj] determination of fair rent held, the fair rent of building under the section is to be determined on the basis of rent agreed between landlord and tenant preceding the date of application. in the absence of rent agreed between parties the basic rent is required to be determined on the basis of rent prevailing in locality for a similar building or rented land on the date of application. if on the date of filing of the application under section 4 of the act for determination of fair rent, the agreed rent was still in vogue thus, it has to be regarded as the basic rent and the same would be constituted as the basis for determining fair rent. .....bishan narain, j.1. lachhman singh and his sons constituted a joint hindu family and carried on business under the name and style of saran singh lachhman singh. lachhman singh died on the 7th of may, 1944, but the family business continued. the joint hindu family firm was assessed to income-tax for the assessment year 1947-48. afterwards proceedings weretaken under section 34 of the indian income-tax act in 1955, and by order dated the 28th of march, 1956, the family firm was held liable to pay tax amounting to rs. 1,11, 555/7/-. as the tax was not paid the income-tax officer sent a recovery certificate under section 46(2) of the income-tax act for recovery of the amount from the joint family firm which in all these proceedings has been described as saran singh lachhman singh. this amount.....
Judgment:

Bishan Narain, J.

1. Lachhman Singh and his sons constituted a joint Hindu family and carried on business under the name and style of Saran Singh Lachhman Singh. Lachhman Singh died on the 7th of May, 1944, but the family business continued. The joint Hindu family firm was assessed to income-tax for the assessment year 1947-48. Afterwards proceedings weretaken under Section 34 of the Indian Income-tax Act in 1955, and by order dated the 28th of March, 1956, the family firm was held liable to pay tax amounting to Rs. 1,11, 555/7/-. As the tax was not paid the Income-tax Officer sent a recovery certificate under Section 46(2) of the Income-tax Act for recovery of the amount from the joint family firm which in all these proceedings has been described as Saran Singh Lachhman Singh. This amount is to be recovered as arrears of land revenue. The Collector issued warrants of arrest of Kuldip Singh and Gulzar Singh, adult members of the family, under Section 69 of the Punjab Land Revenue Act. They filed objections to the warrants of arrest on the ground that they were not liable to arrest and detention as the tax was not their individual liability but was the liability of the joint Hindu family. These objections were, however, rejected by the Collector on the 24th of August, 1956. Kuldip Singh and Gulzar Singh have filed this petition challenging the validity of the order of arrest. In view of the importance of the question, the case was referred to a Division Bench and it has now come before us for decision.

2. The question that requires determination in this case is whether the amount mentioned in a certificate sent under Section 46(2) of the Indian Income-tax Act for recovery of the amount due from the joint Hindu family as arrears of land revenue could be recovered from the individual coparcener by arrest and detention.

3. Now under Section 2, Sub-clause (9) of |the Income-tax Act, a person includes a Hindu undivided family. Accordingly a Hindu undivided family is an entity for assessment. The petitioners with other members constitute a Hindu undivided family under the Indian Income-tax Act and were assessed as such. The petitioners allege that there has been a partition in the family and that the family business has been converted into a partnership since 1950 and that that partnership has been registered under Section 26 of the Income-tax Act.

These allegations assuming them to be correct have no effect on the present case. Admittedly the tax now due has been assessed on the Hindu undivided family under Section 34 of the Income-tax Act for the assessment year 1947-48, and the joint and several liability of each member of the family has not been determined in accordance with the provisions of Section 25A Sub-clause (2) of the Act. The recovery certificate sent to the Collector under Section 46 (2) states that the amount is due from Saran Singh Lachhman Singh of Amristar and does not say that it is realisable from the petitioners individually.

4. Admittedly the amount for which an assessing entity becomes liable to pay under the Income-tax Act is a debt due to the Government. Section 46 prescribes various modes by which this amount may be recovered and to achieve this object it is open to the authorities concerned to adopt any of those modes or to adopt more than one such mode concurrently. In the present case the Income-tax Officer had adopted the mode provided in Section 46 (2) by forwarding the recovery certificate to the Collector Amritsar.

Proviso to Section 46 (2) confers on the Collector powers which a civil Court has for executing a money decree. We are, however, not concerned with this proviso as in the present case the Collector has not purported to invoke this power. Different States in this country have laid down different modes for recovery of arrears of land revenue.

Section 67 of the Punjab Land Revenue Act lays down the modes applicable to the Punjab and in the present case the revenue authorities are seeking the amount of Rs. 1, 11, 555/7/- as arrears of land revenue by arrest and detention of the petitioners under Section 67 (b) of the Punjab Act. Section 69 of the Punjab Act reads:

'69 (1) At any time after an arrear of land revenue has accrued a Revenue-officer may issue a warrant directing an officer named therein to arrest the defaulter and bring him before the Revenue-officer.

(2) When the defaulter is brought before the Revenue-officer, the Revenue-officer may cause him to be taken before the Collector, or may keep him under personal restraint for a period not exceeding ten days and then, if the arrear is still unpaid, cause him to be taken before the Collector.

(3) When the defaulter is brought before the Collector, the Collector may issue an order to the officer in charge of the civil jail of the district, directing him to confine the defaulter in the jail for such period, not exceeding one month from the date of the Order, as the Collector thinks fit.

(4) The process of arrest and detention shall not be executed against a defaulter who is a female, a minor, a lunatic or an idiot.'

5. The contention raised on behalf of the petitioner is that this provision in the nature of things applies only to individual persons and not to a body like a joint Hindu family. It is argued that in the present case the defaulter is a joint Hindu family and the mode of recovery laid down in Section 67 (b) and Section 69 is not applicable to a joint Hindu family. The respondent's reply is that a joint Hindu family consists of its members and all the members jointly and severally are personally liable to pay the dues under the Income-tax Act, and therefore Section 67 (b) and Section 69 are applicable. Now a warrant of arrest can be issued only to a defaulter. This expression is defined in Section 3 (8) of the Punjab Act as a person liable for an arrear of land revenue including a surety responsible for its payment.

The word 'person' is not defined in the Punjab Land Revenue Act. The Punjab General Clauses Act however defined the expression as including any company or association or body of individuals whether incorporated or not (vide Section 2 Sub-clause (40) of the Punjab General Clauses Act) but this definition is subject to 'anything repugnant in the subject or context'

Whether the word 'person' in a statute can be considered to apply to a natural person or can be held to include a body or association of individuals must depend on the consideration of the object and purpose of the statutory provision. In Pharmaceutical Society v. London and Provincial Supply Association (1880) 5 A. C. 857 (A), Lord Blackburn observed:

'The word 'person' may very well include both a natural person, a human being, and an artificial person, a corporation. I think that in an Act of Parliament, unless there be something to the contrary, ........ it ought to be held to include both .......in which way it is used in any particular Act, must depend upon the context and the subject-matter.

I do not think that the presumption that it does include an artificial person, a corporation, is at all a strong one. Circumstances, and indeed circumstances of a slight nature in the context, might show in which way the word is to be construed in an Act of Parliament, whether it is to have the one meaning or the other.

I am quite clear about this, that, whenever you can see that the object of the Act requires that the word 'person' shall have the more extended or the less extended sense, then, whichever sense it requires, you should apply the word in that sense, and construe the Act accordingly.'

6. It appears to me that the scheme of Section 69 shows that it is meant to apply only to natural persons and not to artificial persons. I am unable to understand how a Hindu undivided family can be arrested and brought before the Revenue Officer as laid down in Section 69 (1) of the Punjab Act. A Hindu undivided family as a body cannot be confined in the jail. Lord Blackburn in another portion of the above judgment remarked that a corporation cannot be imprisoned. Moreover under Section 69(4) of the Punjab Act, a minor or a female, a lunatic or an idiot, cannot be arrested and detained.

Therefore, if a Hindu undivided family consists of minors also, then the family as a whole cannot be arrested and detained or confined in jail. Obviously some of the members of the Hindu undivided family cannot be picked out and chosen for arrest and detention as a defaulter under Section 61) as the entire family is one entity and cannot b-- spilt up for the purposes of arrest and detention.

7. It, therefore, follows that if the defaulter is a legal entity and not a natural person then the amount of duos under the Income-tax Act cannot be recovered as arrears of land revenue by arrest, detention or confinement in jail. When the defaulter is a Hindu undivided family the dues can be realised only by a mode other than the one prescribed in Section 67 (b) read with Section 69 of the Punjab Land Revenue Act. It is of course open to the Collector to proceed to recover this amount by other modes prescribed in Section 67 of the Act.

8. For these reasons, I accept this petition and quash the warrants of arrest issued against the petitioners. I further direct the Tehsildar not to execute the warrants of arrest issued by the Collector against the petitioners. The petitioners are entitled to their costs of this petition. Counsel's fee Rs. 100/-.

A. N. Grover, J.

9. I agree.


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